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Kiribati Consolidated Legislation |
LAWS
OF THE GILBERT
ISLANDS
REVISED
EDITION 1977
CHAPTER 34
FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT)
ARRANGEMENT OF SECTIONS
Section
PART
I
PRELIMINARY
1. Short
title
2. Interpretation
PART
II
REGISTRATION OF
FOREIGN JUDGMENTS
3. Power to extend Part II
to foreign countries giving reciprocal
treatment
4. Application for and
effect of registration of foreign
judgments
5. Power of Chief Justice to
make rules
6. Cases in which
registered judgments must or may be set
aside
7. Powers of registering court
on application to set aside
registration
8. Foreign judgments
which can be registered not to be enforceable
otherwise
9. Power to apply Part II to
Commonwealth territories
PART
III
MISCELLANEOUS
AND GENERAL
10. General effect of
certain foreign judgments
11. Power to
make foreign judgments unenforceable if no
reciprocity
12. Issue of certificates
of judgments obtained in the Gilbert Islands
--------------------------------------
1
of
1965
L.N.
16/72
(Cap. 5 of
1973)
An
Ordinance to make provision for the enforcement in the Gilbert Islands of
judgments given in countries which accord reciprocal
treatment to judgments
given in the Islands, for facilitating the enforcement in such countries of
judgments given in the Islands,
and for other purposes in connection with the
matters aforesaid
Commencement: 23rd March 1965
PART
I
PRELIMINARY
Short
title
1.
This Ordinance may be cited as the Foreign Judgments (Reciprocal Enforcement)
Ordinance.
Interpretation
2.
(1) In this Ordinance, unless the context otherwise requires-
"appeal" includes any proceeding by way of discharging or setting aside a judgment or an application for a new trial or a stay of execution;
"country of the original court" means the country in which the original court is situated;
"judgment" means a judgment or order given or made by a court in any civil proceedings or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party;
"judgment creditor" means the person in whose favour the judgment was given, and includes any person in whom the rights under the judgment have become vested by succession or assignment or otherwise;
"judgment debtor" means the person against whom the judgment was given, and includes any person against whom the judgment is enforceable under the law of the original court;
"original court" in relation to any judgment means the court by which the judgment was given;
"registration" means registration under Part II and the expressions "register" and "registered" shall be construed accordingly;
"registering court" in relation to any judgment means the court to which an application to register the judgment is made.
(2)
For the purposes of this Ordinance the expression "action
in
personam" shall not be deemed to include
any matrimonial cause or any proceedings in connection with any of the following
matters, that is
to say, matrimonial matters, administration of the estates of
deceased persons, bankruptcy, winding up of companies, lunacy, or guardianship
of infants.
(3) For the purposes
of this Ordinance the expression "judgments given in the High Court" shall be
deemed to include a judgment given
in any court on appeal against any judgment
given in the High Court.
PART
II
REGISTRATION OF
FOREIGN JUDGMENTS
Power
to extend Part II to foreign countries giving reciprocal
treatment
3.
(1) The Governor, if he is satisfied that, in the event of the benefits
conferred by this Part being extended to judgments given
in the superior courts
of any foreign country, substantial reciprocity of treatment will be assured as
respects the enforcement in
that foreign country of judgments given in the High
Court, may by order direct-
(a) that this Part shall extend to that foreign country; and
(b) that such courts of that foreign country as are specified in the order shall be deemed superior courts of that country for the purposes of this Part.
(2)
Any judgment of a superior court of a foreign country to which this Part
extends, other than a judgment of such a court given
on appeal from a court
which is not a superior court, shall be a judgment to which this Part applies
if-
(a) it is final and conclusive as between the parties thereto; and
(b) there is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and
(c) it is given after the coming into operation of the order directing that this Part shall extend to that foreign country.
(3)
For the purposes of this section a judgment shall be deemed to be final and
conclusive notwithstanding that an appeal may be pending
against it or that it
may still be subject to appeal in the courts of the country of the original
court.
Application
for and effect of registration of foreign
judgments
4.
(1) A person being a judgment creditor under a judgment to which this Part
applies may apply to the High Court at any time within
6 years after the date of
the judgment or, where there have been proceedings by way of appeal against the
judgment, after the date
of the last judgment given in those proceedings, to
have the judgment registered in the High Court, and on any such application the
court shall, subject to proof of the prescribed matters and to the other
provisions of this Ordinance, order the judgment to be
registered:
Provided that a
judgment shall not be registered if at the date of the
application-,
(a) it has been wholly satisfied; or
(b) it could not be enforced by execution in the country of the original court.
(2)
Subject to the provisions of this Ordinance with respect to the setting aside of
registration-
(a) a registered judgment shall for the purposes of execution be of the same force and effect; and
(b) proceedings may be taken on a registered judgment; and
(c) the sum for which a judgment is registered shall carry interest; and
(d) the registering court shall have the same control over the execution of a registered judgment,
as
if the judgment had been a judgment originally given in the registering court
and entered on the date of
registration:
Provided that
execution shall not issue on the judgment so long as under this Part and the
rules made thereunder it is competent for
any party to make an application to
have the registration of the judgment set aside or, where such an application is
made, until
after the application has been finally
determined.
(3) Where the sum
payable under a judgment which is to be registered is expressed in a currency
other than the currency of the Gilbert
Islands, the judgment shall be registered
as if it were a judgment for such sum in the currency of the Islands as, on the
basis of
the rate of exchange prevailing at the date of the judgment of the
original court, is equivalent to the sum so
payable.
(4) If, at the date of
the application for registration, the judgment of the original court has been
partly satisfied, the judgment
shall not be registered in respect of the whole
sum payable under the judgment of the original court but only in respect of the
balance
remaining payable at that
date.
(5) If on an application for
the registration of a judgment it appears to the registering court that the
judgment is in respect of
different matters, and that some but not all of the
provisions of the judgment are such that, if those provisions had been contained
in separate judgments, those judgments could properly have been registered, the
judgment may be registered in respect of the provisions
aforesaid but not in
respect of any other provisions contained
therein.
(6) In addition to the
sum of money payable under the judgment of the original court, including any
interest which by the law of the
country of the original court becomes due under
the judgment up to the time of registration, the judgment shall be registered
for
the reasonable costs of and incidental to registration, including the costs
of obtaining a certified copy of the judgment from the
original
court.
Power of
Chief Justice to make
rules
5.
(1) Subject to the provisions of this section, the Chief Justice may make rules
for all or any of the following purposes:
(a) for making provision with respect to the giving of security for costs by persons applying for the registration of judgments;
(b) for prescribing the matters to be proved on an application for the registration of a judgment, and for regulating the mode of proving those matters;
(c) for providing for the service on the judgment debtor of notice of the registration of a judgment;
(d) for making provision with respect to the fixing of the period within which an application may be made to have the registration of the judgment set aside and with respect to the extension of the period so fixed;
(e) for prescribing the method by which any question arising under this Ordinance whether a foreign judgment can be enforced by execution in the country of the original court or what interest is payable under a foreign judgment under the law of the original court is to be determined;
(f) for prescribing any matter which under this Part is to be prescribed.
(2)
Rules made for the purposes of this Part shall be expressed to have and shall
have effect subject to any such provisions contained
in orders made under
section 3 as are declared by the said orders to be necessary for giving effect
to agreements made between Her
Majesty and foreign countries in relation to
matters with respect to which there is power to make rules for the purposes of
this
Part.
Cases in
which registered judgments must or may be set
aside
6.
(1) On an application in that behalf duly made by any party against whom a
registered judgment may be enforced, the registration
of the
judgment-
(a) shall be set aside if the registering court is satisfied-
(i) that the judgment is not a judgment to which this Part applies or was registered in contravention of the foregoing provisions of this Ordinance; or
(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(iii) that the judgment debtor being the defendant in the proceedings in the original court did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or
(iv) that the judgment was obtained by fraud; or
(v) that the enforcement of the judgment would be contrary to public policy in the country of the registering court; or
(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made;
(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had, previously to the date of the judgment in the original court, been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.
(2)
For the purposes of this section the courts of the country of the original court
shall, subject to the provisions of subsection
(3), be deemed to have had
jurisdiction-
(a) in the case of a judgment given in an action in personam-
(i) if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purpose of protecting or obtaining the release of property seized or threatened with seizure in the proceedings or of contesting the jurisdiction of that court; or
(ii) if the judgment debtor was plaintiff in or counter-claimed in the proceedings in the original court; or
(iii) if the judgment debtor, being a defendant in the original court, had, before the commencement of the proceedings, agreed in respect of the subject matter of the proceedings to submit to the jurisdiction of that court or of the courts of the country of that court; or
(iv) if the judgment debtor, being a defendant in the original court, was, at the time when the proceedings were instituted, resident in, or being a body corporate, had its principal place of business in, the country of that court; or
(v) if the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court, and the proceedings in that court were in respect of a transaction effected through or at that office or place;
(b) in the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property, if the property in question was at the time of the proceedings in the original court situated in the country of that court;
(c) in the case of a judgment given in an action other than any such action as is mentioned in paragraph (a) or paragraph (b), if the jurisdiction of the original court is recognised by the law of the registering court.
(3)
Notwithstanding anything in subsection (2) the courts of the country of the
original court shall not be deemed to have had jurisdiction-
(a) If the subject matter of the proceedings was immovable property outside the country of the original court; or
(b) Except in the cases mentioned in sub-paragraphs (i), ,(ii) and (iii) of paragraph (a) and in paragraph (c) of subsection (2), if the bringing of the proceedings in the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or
(c) If the judgment debtor, being a defendant in the original proceedings, was a person who, under the rules of public international law, was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.
Powers
of registering court on application to set aside
registration
7.-(1)
If on an application to set aside the registration of a judgment the applicant
satisfies the registering court either that an
appeal is pending or that he is
entitled and intends to appeal against the judgment, the court, if it thinks
fit, may, on such terms
set as it may think just, either set aside the
registration or adjourn the application to set aside the registration until
after
the expiration of such period as appears to the court to be reasonably
sufficient to enable the applicant to take the necessary steps
to have the
appeal disposed of by the competent
tribunal.
(2) Where the
registration of a judgment is set aside under the last foregoing subsection, or
solely for the reason that the judgment
was not, at the date of the application
for registration, enforceable by execution in the country of the original court,
the setting
aside of the registration shall not prejudice a further application
to register the judgment when the appeal has been disposed of
or if and when the
judgment becomes enforceable by execution in that country, as the case may
be.
(3) Where the registration of
a judgment is set aside solely for the reason that the judgment, notwithstanding
that it had at the
date of the application for registration been partly
satisfied, was registered for the whole sum payable thereunder, the registering
court shall, on the application of the judgment creditor, order judgment to be
registered for the balance remaining payable at that
date.
Foreign
judgments which can be registered not to be enforceable
otherwise
8.
No proceedings for the recovery of a sum payable under a foreign judgment, being
a judgment to which this Part of this Ordinance
applies, other than proceedings
by way of registration of the judgment shall be entertained by any court in the
Gilbert
Islands.
Power
to apply Part II to Commonwealth
territories
9.
(1) The Governor may by order direct that this Part shall apply to any part of
the Commonwealth outside the Gilbert Islands and to
judgments obtained in the
courts of the Commonwealth as it applies to foreign countries and judgments
obtained in the courts of foreign
countries, and, in the event of the Governor
so directing, this Ordinance shall have effect
accordingly.
(2) This Part shall
have effect as if any judgment of a court to which subsection (1) applies which
was registered in the High Court
under the Reciprocal Enforcement of Judgments
Ordinance had been registered in that court under this Part, and anything done
in relation
thereto under that Ordinance or any rules of court or other
provisions applicable to that Ordinance had been done under this Part
or the
corresponding rules or other provisions applicable to this Part.
Cap. 6 of 1952
PART
III
MISCELLANEOUS
AND GENERAL
General
effect of certain foreign
judgments
10.
(1) Subject to the provisions of this section a judgment to which Part II
applies or would have applied if a sum of money had been
payable thereunder,
whether it can be registered or not and whether, if it can be registered, it is
registered or not, shall be recognised
in any court in the Gilbert Islands as
conclusive between the parties thereto in all proceedings founded on the same
cause of action
and may be relied on by way of defence or counter-claim in any
such proceedings.
(2) This section
shall not apply in the case of any judgment-
(a) where the judgment has been registered and the registration thereof has been set aside on some ground other than-
(i) that a sum of money was not payable under the judgment; or
(ii) that the judgment has been wholly or partly satisfied; or
(iii) that at the date of the application the judgment could not be enforced by execution in the country of the original court; or
(b) where the judgment has not been registered it is shown, whether it could have been registered or not, that if it had been registered the registration thereof would have been set aside on an application for that purpose on some ground other than one of the grounds specified in paragraph (a).
(3)
Nothing in this section shall be taken to prevent any court in the Islands
recognising any judgment as conclusive of any matter
of law or fact decided
therein if that judgment would have been so recognised before the passing of
this
Ordinance.
Power
to make foreign judgments unenforceable if no
reciprocity
11.
(1) If it appears to the Governor that the treatment in respect of recognition
and enforcement accorded by the courts of any foreign
country to judgments given
in the High Court is substantially less favourable than that accorded by the
courts of the Gilbert Islands
to judgments of the superior courts of that
country, the Governor may by order apply this section to that
country.
(2) Except in so far as
the Governor may by order under this section otherwise direct, no proceedings
shall
be entertained in any court in the
Islands for the recovery of any sum alleged to be payable under a judgment given
in a court of
a country to which this section
applies.
Issue
of certificates of judgments obtained in the Gilbert
Islands
12.
Where a judgment under which a sum of money is payable, not being a sum payable
in respect of taxes or other charges of a like nature
or in respect of a fine or
other penalty, has been entered in the High Court against any person, and the
judgment creditor is desirous
of enforcing the judgment in a country or
territory to which Part II applies, the court shall, on an application made by
the judgment
creditor and on payment of such fee as may be fixed for the
purposes of this section under any rules made under the provisions of
this
Ordinance, issue to the judgment creditor a certified copy of the judgment
together with a certificate containing such particulars
with respect to the
action, including the causes of action and the rate of interest if any payable
on the sum payable under the judgment,
as may be
prescribed:
Provided that where
execution of a judgment is stayed for any period pending an appeal or for any
other reason, an application shall
not be made under this section with respect
to the judgment until the expiration of that period.
_________________________
[Subsidiary]
SUBSIDIARY LEGISLATION
Direction
under section 3(1) extending Part II to foreign countries giving reciprocal
treatment
L.N.
27/66
Part II shall extend to the
Independent State of Papua New Guinea and the National Court of that State shall
be deemed a superior
court of that State for the purposes of Part
II.
Directions
under section 9(1) applying Part II to Commonwealth
territories
L.N.
26/66
Part II shall extend to the
Independent State of Papua New Guinea and the Islands and to judgments obtained
in the Courts of the
Commonwealth as it applies to foreign countries and
judgments obtained in the courts of foreign countries.
--------------------------------------
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